Legalizing Prostitution: From Illicit Vice to Lawful Business (38 page)

Rights

• Guarantee workers’ rights to refuse to engage in any sex act and to refuse to service a particular person. These rights supersede those of clients and business owners. Employers should be held responsible for ensuring that their workplaces are free of coercion and harassment.

• Prohibit discrimination against sex workers and business operators. An example is the systematic refusal of banks in the Netherlands to loan money to anyone involved in the sex industry, forcing them to seek other (perhaps questionable) sources of funding.

• Sex workers and business owners should be exempt from paying any unpaid taxes accrued prior to decriminalization. Taxation should not be retroactive.

• Expunge the criminal records of individuals with prostitution-related arrests and convictions received prior to legalization, freeing them of the stigma of a criminal record.

Safety

• Intensify sanctions against those who abuse sex workers. This pertains to client violence, parasitical pimping, sexual harassment by managers, and coercive or fraudulent trafficking. Regarding pimping, laws criminalizing anyone who “lives off the earnings of a prostitute” should be repealed because they could apply to a nonabusive boyfriend, friend, or husband. Punishment should be restricted to those who are violent or coercively exploitative—for example, forcing a person to work at certain times, to earn a certain amount of money before she or he can leave work, to perform disliked sex acts, and so on.

• Facilitate the reporting of abuse by educating police and other authorities to treat prostitutes as persons with rights, whose protection is the responsibility of state officials. This means sensitivity training for all officials who have professional contact with legal sex workers and requires a paradigm shift away from viewing them as deviants and prostitution as an immoral enterprise. The process can take a fairly long time, given the long history in which prostitution has been marginalized and stigmatized. We should expect some cultural lag—that is, societal toleration and acceptance lagging well behind legal reform—but where prostitution has been legalized, it is imperative that government officials learn to treat it as a conventional enterprise.

• Create a hotline through which clients and sex workers can anonymously report to the police suspected abuse of another sex worker. Such a hotline exists in the Netherlands today.

Policy Review and Enforcement

• The government should sponsor periodic review of prostitution-related laws and policies and their implementation and should rectify any problems identified in the review.

• If evaluations are conducted by an existing agency (e.g., Ministry of Justice) representatives of the sex industry (both sex workers and business owners) should be consulted during the review process. A preferable arrangement is creation of a separate agency with special expertise on the sex industry. Such an agency must include representatives of the sex industry on its board. This helps to ensure that the interests of owners and workers are taken into account in deliberations regarding law, policy, administration, or enforcement. As a Canadian panel emphasized, “sex workers should be regarded as experts in any law or policy decisions affecting the sex industry.”
¹³
The members of New Zealand’s Prostitution Law Review Committee include government officials, operators of sex businesses, and representatives of the New Zealand Prostitutes’ Collective.

• In a newly legal system, it is important that prostitutes and their employers be informed of their rights and obligations under the law, and it is the government’s responsibility to ensure this.

• Regulations are one thing; enforcement is another. It is crucial that the authorities actually enforce all regulations and are given the resources to do so.

In addition to allowing sole operators to work from their own residences, governments should be open to the idea of permitting worker cooperatives, that is, a small number of individuals who work together in the same (nonresidential) location without a boss or manager. The workers would make all decisions collectively, provided that they comply with general norms on health, safety, and rights. This cottage-industry model was supported by three Canadian commissions as well as several other bodies
¹⁴
and is allowed in some (but not all) current legal prostitution systems. Criminologist John Lowman asks a related question: “What if escort services or other venues were to be run by non-profit societies, with some of the revenues being used to provide services for prostitutes?”
¹⁵
A prostitutes’ rights organization could play this role, for example. The government might sell property to the organization, whose members would organize and run it in a way that maximizes workers’ interests. A group of Dutch scholars and the sex workers’ organization Red Thread recently floated a proposal for a broader public-private partnership. “The managing collective consists of (ex-) sex workers, representatives of sex workers, residents who live near the sex facility, and, if necessary, management and financial professionals. The collective leases space from the local government for affordable prices and organizes and manages the sex facility.”
¹⁶
The local government’s role would consist of enforcing antipimping laws, licensing and monitoring venues to ensure safe working conditions, and providing certain services (e.g., health care) to the workers.
¹⁷
This idea was more than just wishful thinking: the group located four buildings in Amsterdam with existing window units that they wanted to buy, but they could not arrange financing.
¹⁸

Is decriminalization or legalization possible in the United States? Nevada and Rhode Island show that a liberal policy is not a completely foreign idea in modern America. Yet Nevada’s system of legal, regulated brothels is restricted to remote rural areas, and Rhode Island recently criminalized prostitution after 30 years of tolerance of the indoor sector.
Chapter 3
showed that prostitution policies in the United States have grown more repressive over the past decade—with new laws, stiffer punishments, increased targeting of clients, and crackdowns on indoor operators in some jurisdictions. We might wonder why American prostitution policy has become steadily less tolerant in the context of two larger trends: the growing sexualization of
popular culture and the gradual if incomplete normalization of some other kinds of vice or deviance over the past 40 years (gambling, marijuana use, gay rights, pornography, etc.).
¹⁹
As two analysts point out, “On the roster of victimless crimes, only the laws against prostitution have resisted [liberalizing] change in the United States during recent decades.”
²⁰
Why?

There are several reasons: (1) victimization or harm is viewed as much more prevalent in prostitution than in some of the other areas (marijuana use, gambling, gay rights); (2) a largely silent constituency: despite the fact that many sex workers and clients favor decriminalization, they have been reluctant to mobilize for reform;
²¹
(3) a shakier rights justification: the “right” to control what one does sexually with one’s body is frequently advanced but has not persuaded policymakers (in contrast to gay rights, abortion rights, free-speech rights underlying pornography); (4) a lack of debate in political circles and in the media regarding alternatives to criminalization; (5) limited public support for decriminalization in the United States compared to many other nations and in contrast to Americans’ overwhelming support for legal gambling and medical marijuana and growing support for gay rights; (6) weak or nonexistent alliances between sex workers’ rights groups and other influential interest groups, especially women’s rights organizations; and (7) potent opposition: a robust and influential coalition of interest groups on the right and left committed to keeping prostitution illegal and criminalizing other types of sex work.
²²

This roster of forces operating against liberalization of prostitution policies should not be taken to mean that legal reform is impossible in the United States in the future. Liberalization is clearly beyond the pale in the vast majority of jurisdictions, but it is possible that a particular city or state, one known for its tolerance, might embrace a more lenient approach in the future. Recall that San Francisco came close to embracing de facto decriminalization in 2008, when 42 percent of city residents voted for a measure that would have prevented the police from making prostitution arrests, and a remarkable de jure decriminalization bill was presented in the Hawaii legislature in 2007.
²³
It is also possible that a state court might follow Canada’s lead and declare the state’s prostitution law unconstitutional (in September 2010, a Canadian court ruled that the prostitution laws “are not in accord with the principles of fundamental justice” because criminalization contributes to the endangerment of prostitutes).
²⁴
Although the general trend in the United States is in the direction of greater repression, the possibility of liberalization at the local level cannot be ruled out. The experiences of nations where prostitution is legal and regulated could provide useful guidance for any American jurisdiction that decides to move in that direction.

NOTES TO CHAPTER 1

1
. Parts of this chapter draw on Ronald Weitzer, “Sociology of Sex Work,”
Annual Review of Sociology
35 (2009): 213–234; Ronald Weitzer, “Sex Work: Paradigms and Policies,” in Ronald Weitzer, ed.,
Sex for Sale: Prostitution, Pornography, and the Sex Industry
, 2nd ed., New York: Routledge, 2010; and Ronald Weitzer, “The Mythology of Prostitution: Advocacy Research and Public Policy,”
Sexuality Research and Social Policy
7 (2010): 15–29.

2
. TopTenREVIEWS provides the following figures for 2006 in the United States alone: $3.62 billion on X-rated video sales/rentals; $2.84 billion on Internet porn; $2.19 billion on cable TV, PPV, mobile, and phone sex; $2 billion on exotic dance clubs; $1.73 billion on novelties; $0.95 billion on magazines. Jerry Ropelato, “Internet Pornography Statistics,” TopTenREVIEWS,
http://internet-filter-review.toptenreviews.com/internet-pornography-statistics.html
.

3
. Eric Schlosser, “The Business of Pornography,”
U.S. News and World Report
, February 10, 1997; 2006 figure from Ropelato, “Internet Pornography Statistics.”

4
. Ropelato, “Internet Pornography Statistics.”

5
. William Sherman, “The Naked Truth about Strip Clubs,”
New York Daily News
, July 8, 2007.

6
. James Davis and Tom Smith,
General Social Survey: Cumulative Codebook
, Chicago: National Opinion Research Center, 2008. These figures are virtually identical to those for 2002, 2004, and 2006.

7
. Ibid.

8
. Chris Rissel, “Experiences of Commercial Sex in a Representative Sample of Adults,”
Australian and New Zealand Journal of Public Health
27 (2003): 191–197.

9
. In some other nations, even more men say they have paid for sex. In Spain, 39 percent of men have done so during their lifetime, and in northeastern Thailand, 43 percent of single men and 50 percent of married men had visited a prostitute. Ibid.; Eleanor Maticka-Tyndale, “Context and Patterns of Men’s Commercial Sexual Partnerships in Northeastern Thailand,”
Social Science and Medicine
44 (1997): 199–213.

10
. Ipsos MORI poll, January 6–10, 2006, N = 1,790, ages 16–64.

11
. Hillary Rhodes, “Prostitution Advances in a Wired World,” Associated Press, March 11, 2008; Bruce Lambert, “As Prostitutes Turn to Craigslist, Law Takes Notice,”
New York Times
, September 4, 2007.

12
. Figures are from the FBI’s annual crime report under the category “prostitution and commercialized vice,” which includes soliciting, brothel keeping, procuring, and transportation. The number of juveniles arrested is a small fraction of the total and very similar from year to year: 1,200 in 2001 and 1,156 in 2008. Federal Bureau of Investigation,
Crime in the United States
, Washington, DC: Department of Justice, 1983, 2009.

13
. Lynn Comella, “Remaking the Sex Industry: The Adult Expo as a Microcosm,” in Weitzer, ed.,
Sex for Sale
, 2nd ed.

14
. Davis and Smith,
General Social Survey
.

15
. Ellison Research poll, March 11, 2008, N = 1,007. This was the view of 42 percent of men and 57 percent of women.

16
. Harris Poll #76, September 20–26, 2004, N = 2,555. This was the view of 38 percent of men and 57 percent of women.

17
. UMR Research poll, reported in
PC World
, January 12, 2010, N = 1,000,
http://pcworld.co.nz
.

18
. ICM Research, Sex and Exploitation Survey, January 2008, N = 1,023. Women (68 percent) were slightly more likely to take this view than were men (62 percent).

19
. Ipsos MORI poll, Prostitution Survey, June 11–12, 2008, N = 1,012.

20
. Ipsos MORI poll, Prostitution Survey, August 29–31, 2008, N = 1,010.

21
.
Time
magazine poll, July 26–31, 1977, N = 1,044 registered voters.

22
. The question asked “whether you think prostitution can always be justified, never be justified, or something in between” and asked respondents to rank this on a ten-point continuum. World Values Survey,
http://www.wvsevsdb.com/wvs/WVSAnalizeQuestion
. jsp. The meaning of “justified” is opaque in the question.